Excerpt:endowments - debutter property--accretions--custom--gir gossains--dismissal--punch, power of--bhat's book, admissibility in evidence of--evidence act (i of 1872), section 32. - .....parties might choose to adduce. upon remand additional evidence was given on both sides and the learned judge returned, his findings on the issues in accordance with the directions of this court. of the five issues remitted to the court below the learned subordinate judge decided the 9th issue only in favour of the defendants. this issue related to the validity of an ikrarnama executed by the defendant no. 1 in favour of the plaintiff. all the other issues were decided in favour of the plaintiff. the learned vakil for the appellant has attacked most of these findings as well as some of the findings arrived at by the learned subordinate judge on the issues decided before remand, and we may state generally that after careful consideration of the arguments on both sides' we are not.....

Judgment:

1. In this suit plaintiff claiming to be shebait of the Idol Khubaneswar Mahadeb prayed for declarations that properties ka, kha, ga and gha described in the schedule to the plaint belong to the said idol; and that the plaintiff was its shebait, his predecessor, the defendant No. 1, having been removed from his office owing to misconduct and the plaintiff appointed in his place by the Punch of the act, in whom authority for the purpose was vested by custom and the constitution of the endowment.

2. Plaintiff further prayed that two patni pottas, dated the 5th May 1913, granted by the defendant No I to defendant No. 2 in res peat of properties kha and kha after his removal from office be declared void and inoperative. The date of the defendant's removal by the pur.ch and the plaintiff's appointment in his place is alleged to be the 31st July 1912. On the 23rd December 1914 defendant No. 3 was impleaded on the ground that the defendant No. 1 had on the 5th Kartic 1321 (22nd October 1914) sold the dwelling-house in schedule ka to him.

3. There was a further prayer by the plaintiff for recovery of possession, should he be found to be out of possession of any of the properties.

4. While the trial was still pending in the First Court, on the 16th March 1915 the defendant No. 1 compromised the case with the plaintiff, withdrew his written statements and admitted the plaintiff's claim and consented to a decree being passed in favour of the plaintiff.

5. Upon the pleadings, fourteen issues were framed and the learned Subordinate Judge, having decided those issues in favour of the plaintiff, passed a decree granting him the declarations he had asked for and also awarding him a decree for recovery of possession. There was an appeal by the defendants Nos. 2 and 3 to this Court. During the pendency of the appeal, the plaintiff having died, his heir and legal representative, his chela, Gossain Radra Nandan Gir, was substituted in his place as plaintiff. At the first hearing of the appeal in March 1919, it was agreed on both sides that the findings of the learned Subordinate Judge on the several issues were not sufficient and that proper findings should be made on the issues on which the Judge had not arrived at any definite findings. The appeal was accordingly kept pending on the files of this Court and issues Nos. 6, 7, 9, 10 and 11 were remitted to the Court below for proper findings after admitting such further evidence as the parties might choose to adduce. Upon remand additional evidence was given on both sides and the learned Judge returned, his findings on the issues in accordance with the directions of this Court. Of the five issues remitted to the Court below the learned Subordinate Judge decided the 9th issue only in favour of the defendants. This issue related to the validity of an ikrarnama executed by the defendant No. 1 in favour of the plaintiff. All the other issues were decided in favour of the plaintiff. The learned Vakil for the appellant has attacked most of these findings as well as some of the findings arrived at by the learned Subordinate Judge on the issues decided before remand, and we may state generally that after careful consideration of the arguments on both sides' we are not satisfied that any of the findings are incorrect. The case as it seems to us presents no great difficulty.

6. The arguments of the learned Vakils for the appellant have been mainly directed to three points.

(1) whether the properties in suit are properties of the Math.

(2) whether the alienators made by the defendant No. 1 were for legal necessity, and

(3) whether the punch was properly constituted and had the power of removing the defendant No. 1 and appointing the plaintiff in his place.

7. If the first and the third questions are answered in favour of the plaintiff, it will not be necessary to consider the second question, as all the alienations took place after the removal of the defendant No. 1 from the office of shebait.

8. The first point need not detain us long. This question was raised in the fifth issue which the learned Judge decided in favour of the plaintiff, giving full reasons for his decision.

9. It seems to us that upon the evidence no other conclusion is possible. Of the four properties, ka and kha are included in the original deed of endowment executed by Lal Gir in favour of Niranjan Gir Gossain and another dated the 16th October 1854, As regards the other properties it is dear upon the evidence that these were acquired subsequently with the income of the properties originally endowed. All the properties are included in the Will of Prosottam Gir whereby the defendant No. 1 was appointed shsbait of the debutter properties. The learned Judge refers to numerous documents in support of the conclusion that the defendant No. 1, who tame into possession of the properties in suit as chela of Prosottam Gir, all along treated these properties as properties belonging to the idol.

10. We, therefore, answer this question in favour of the plaintiff.

11. As to the third question the evidence is equally clear. That the plaintiff was guilty of gross misconduct has been established by ample evidence taken both before and after the remand. One of these witnesses pays 'Ajraj used to visit public women. Helplessly drunk in company of public women I found Ajraj at his own bari, Ajraj married a woman; I heard of his marriage once; I asked him why did he marry: he said ha openly married a woman and also drunk wine and he would not care whether the purch would eat him or not.' To the same effect is the evidence of a number of other witnesses. It is cot, however, necessary to examine this evidence in detail as Ajraj stands condemned by his own admission. It appears that in September 1913 there was a dacoity in his house and he lodged a first information at the Bamangola Police Station. In that document Ajraj Gir complained of a dacoity in his house in which a considerable quantity of cash and ornaments were said to have been removed from his house by the dacoits. These ornaments are those ordinarily used by women. Subsequently on the 4th September 1918 Ajraj made the following statement to the Investigating Police Officer.

I was sleeping inside the certain of a chapperkhat standing en the east of the walled room facing north at about 8 or 9 p. m., on 17th Bhadra 1320, Tuesday last, My head was towards the west, I was awake owing to being ill. Within the room near the door towards the west was Dooshini Gossaini who could not tee with her eyes in the outside. On the east side of the door my mistress Soudamini Gosaini and at a little distance towards the west in the verandah was Manda Rarini.

12. The learned Vakil for the appellant did not and could not seriously repudiate the charge of immorality brought against Ajraj.

13. There is no doubt again that his conduct disqualified Ajraj from holding the office of shebait, and it has next to be considered whether it was open to the punch to remove him and appoint a successor.

14. In the deed executed by Lalgir Gossain dated the 16th October 1854 which created the endowment it is laid down that of the shebaits appointed by him whoever shall waste the poonji or shall misbehave shall be ousted from the shebaitship and shall be driven out from the hateli (house of the Mahadev), and if he does not go away, the punch of my caste is vested with authority to drive him out of the house if they get proof of his making waste or doing any misdeed. II. is also laid down that against the decision of the punch no complaint or claim shall be admissible in any Court. Reference need only be made to the evidence of Mahanth Padmanand Bharat, a very respectable witness from Purnea, who is a Zemindar with an income of 20 or 15 thousand rupees, a member of the local and District Board and an Honorary Magistrate. This witness is the Mahanth of 4 or 5 Maths; he deposes that he belongs to the sect of Giri Gossain, that among them marriage is not allowed and that by custom if any one of the Giri Gossain seat drinks wine or marries or becomes addicted to vice, the punch can dismiss him and instal another shebait in his place. This evidence has received ample support from the evidence of a number of other witnesses examined in the case before and after remand. The existence of the custom is also recognised in the case reported as Amrita Lal Shaha v, Gossain Ganpat Gir 51 Ind. Cas. 814 : 28 C. W. N. 401. It was objected that Lai Gir'a Will refers in terms only to the persons whom he appointed his successors. In our opinion, on this materials before us, the Will must he read as incorporating the general custom and directing its application in a particular instance. As the Subordinate Judge points out, there n no rebutting evidence for the defence and we have no hesitation in agreeing with him that the existence of the custom in established.

15. The next point that arises for consideration is whether the punch was duly constituted and asted in conformity with the rules. It appears from the evidence that the punch, when they assembled, invited Ajraj to appear before them which Ajraj declined to do. The punchnama contains the following statement.

16. 'Having got good and reliable evidence and knowing for certain by making necessary enquiries that the said Ajraj, having been addicted to vises and having lost his character, had, contrary to the long standing custom of the Sony sis, married a low caste woman and taken her food, etc., and lived with her in her father's house leaving his residence and had neglected and obstructed the performance of the Sheba of the Idol Khubaneswar Mahadev and that the Dab Sheba was about to be stopped, the punch ex-communicated the said Ajraj, and after declaring him to be quite unfit to hold the poet of Shebait made over the charge of tarrying on the Sheba of the said idol to Gossain Protab Chandra Gir of English Bazaar.' That Protab Gir is a man of position and character has not been denied. The sittings of the punch are said to have taken place in the house of the plaintiff. The word 'house' in the language of the sect means the same thing as a Math, It has been argued that all the Giri Gossains competent to sit as members of the punch did not attend the meeting. Upon the evidence of witness No. 25 for the plaintiff it appears that there were altogether seventeen persons who might possibly have had a claim to sit on the punch. That out of these one was a lunatic, four had been ex-communicated and three gone on pilgrimage and were absent. It is not shown for the defence that there were any other Gossains available at the time, The plaintiff himself was one of the members of the punch but he very properly abstained from taking part in their deliberation, he being personally interested.

17. It appears that one Balkishen Gir was present, though his signature in not appended to the punchnama. The punchnama is signed by five parsons, Ganga Gir, Ganpat Gir, Mahesh, Gir, Mangal Gir, Ajodha Gir.

18. We are satisfied that on the evidence as to the procedure observes on these occasions that there wore a sufficient number of Gossains present to form a proper and regular quorum.

19. Among the members of the punch were some chelas who sat along with their gurus. It has been argued that this is an irregularity. There is, however, evidence to show that, during the lifetime of his guru, a chela who is of age may be member of the punch.

20. It has next been contended that plaintiff was not the nearest golia of Ajraj and could not, therefore, take his place as a shebait. On this point the Court below has relied on the kursinamah contained in the Bhats book Exhibits 1 to 1 (6). The Bhats are heralds who are interested in keeping up such a record. The book in our opinion comes from proper custody and is evidence under Section, 32 of the Evidence Act. There is no reason to doubt its genuineness. There is a slight conflict between the kursinamah and the oral evidence but in the first place the relationships in question, are not blood, relationships though they are analogous thereto' and in the second place they are very distant. It is not surprising, therefore, to find some contention or in accuracy in the oral testimony. We sea no reason to distrust the written record. There is no other claimant in the field and we find with the Subordinate Judge that the plaintiff is the neatest Golia of the dismissed shebait Ajraj Gir.

21. There can be no doubt upon the evidence that succession is governed by golia relationship and the point' is not raised in the grounds of appeal. In the absence of a chela the nearest gotia succeeds.

22. The defendant No. 2 id a Pleader and, something has been said, as to the propriety of the transactions into whish he entered with the defendant No. 1 In the view we take it is not necessary for us to consider the case from that point of.

23. For the reasons indicated we dismiss the appeal and confirm the decree of the Court below.

24. The respondent is entitled to his costs in this appeal. We access the bearing fee at two hundred and fifty-five rupees.

25. The main appeal (R. A. 258 of 1916) having been disposed of, it follows as the result of our decision in that case that the plaintiff in the present case who was the defendant No. 2 in the other case not having acquired any title to the property in suit under the two putni pottas executed in his favour by Ajraj, is not entitled to a decree for rent against the tenants. This appeal must, therefore, be decreed and the plaintiff's suit for rent dismissed with costs throughout.

26. As regards the Rules, the question does not fall under Section 115, Code of Civil Procedure. The Rules must, therefore, be discharged without costs.